The Immigration Argument That Almost Nobody Mentions

Whatever President Obama does, President Cruz could undo

August 8, 2014

This was the week the debate about immigration reform stopped being about policy goals and started being about how to achieve them.

Because Congress has failed to pass comprehensive reform legislation, President Obama has indicated that he will take action on his own. And while he hasn’t said exactly what he has in mind, it’s no secret that he’s thinking about ways to let some portion of the nation’s 11 million undocumented immigrants apply for work permits, while temporarily promising not to deport them. He’s already done something like that once before—in 2012, with the Deferred Action for Childhood Arrivals, known as DACA. That executive action made available similar privileges and protections to undocumented adult immigrants who first arrived here as children, have lived in the U.S. continuously since 2007, and meet other criteria related to education and conduct.

In principle, this would be the kind of move that both Democrats and Republicans could support. The Senate’s immigration bill proposes to help the same people, only in a far more ambitious way. And that bill passed with substantial bipartisan backing. But House Republicans refused to take up the bill, so now the question is what Obama can do unilaterally, by using his "prosecutorial discretion" and other tools of executive action. Already, conservatives are saying that a reprise, adaptation, or expansion of DACA would be “lawless” and “reckless,” as New York Times columnist Ross Douthat put it on Sunday. A few days later, Megan McArdle, writing in Bloomberg View, seconded the warning. “At the point at which you are announcing that [existing immigration] law won’t be enforced against a large fraction of the people who are violating it,” McArdle wrote, “then you are effectively rewriting that law.”

I totally get the underlying concern here. The limits of presidential power matter and smart, reasonable people can disagree about what they should be. But here’s one fact to remember: Any action Obama takes will, by definition, lack the permanence of legislation. President Ted Cruz could undo it on January 20, 2017. He might not want to do that, for all sorts of political and practical reasons. But he or any other Obama successor would have the same kind of unilateral authority to act that Obama does. And reversing an executive order is a heck of a lot easier than trying to undo legislation—which, after all, requires new legislation, which in turn means pushing a new bill through both houses of Congress and getting a presidential signature.

Does that justify whatever action Obama eventually decides to take? Not necessarily. There are many other issues at play here. Meanwhile, as my colleague Brian Beutler keeps reminding everybody, Obama still hasn’t announced what he plans to do. That makes it tough to draw conclusions. But the distinction between even the most ambitious executive order and actual legislation is a big one. Don’t lose sight of it.

—Jonathan Cohn

Things that Happened Yesterday:

IMMIGRATION: Fewer unaccompanied children are showing up on the southern border, allowing the government to shut down the shelters it had set up to handle the huge inflow. (Associated Press)

GUNS: A jury returned a guilty verdict for the Michigan man who shot and killed Renisha McBride on his porch last year. The case received national attention in the debate over Stand Your Ground Laws. (MSNBC)

VETERANS AFFAIRS: President Obama signed the $16.7 billion, bipartisan bill that will let the VA hire more professionals, give agency heads more discretion to fire workers, and allow some veterans to seek care outside the system. (Wall Street Journal)

SAME-SEX MARRIAGE: Somebody is appealing the federal court ruling overturning Utah's same-sex marriage ban. But, in an unusual move, it’s the side that won. They want the Supreme Court to take the case, because they think they can win. (Salt Lake Tribune)

Things Worth Reading:

How far can Obama go on immigration? Greg Sargent interviews the lawyer who provided advice last time, when Obama decided to implement DACA. (The Plum Line)

Seeking refuge … from global warming: New Zealand just became the first country to recognize climate change as a reason to grant refugee status. It happened when a family won asylum because their entire island is expected to disappear in the next 30 to 50 years. (Rick Noack, Washington Post)

They were talking about this in the 1990s: Jason Millman reports that the quest to create universal electronic medical records is making progress—just not a lot of it. (Wonkblog)

Gaming out the 2016 Primaries. Paul Waldman and Ed Kilgore wonder whether the focus of the GOP contest will be how to achieve conservative goals, rather than what conservative goals to achieve. (American Prospect, Washington Monthly)

Things that make you shake your head in disbelief: The U.S. has held off signing an international agreement on children’s rights because social conservatives here worried it would outlaw spanking. (Erika Eichelberger, Mother Jones)

Stories We’ll Be Watching Today:

It’s a Friday, so we’ll be on the lookout for news dumps about new regulations. But the humanitarian and military missions in Iraq will probably dominate the headlines.

At QED:

Which country is the biggest source of refugees coming to the U.S.? Danny Vinik crunches the numbers. Hint: it’s not someplace in Central America. Also we have an interactive map on Obamacare’s Medicaid expansion—you can see how much money states give up when they refuse to participate.